Nervous shock and claims for psychiatric injury

Claims for psychiatric injury arising out of horrifying events continue to come before the courts as claimants, defendants and judges wrestle with the scope of the well-known Alcock control mechanisms (Alcock v CC of South Yorkshire Police [1992]). It is an obvious point, although bears repeating, that the control mechanisms only fall to be considered if the claimant is a secondary victim whose claim relates to an event that has befallen one of their loved ones. If in fact the claimant is a primary victim, or indeed, if the claimant has no close relationship of love and affection with those harmed in the event, then the control mechanisms do not apply.

The status of the claimant as a primary victim was the issue before the court in Weddle v Glasgow City Council [2021] SAC (Civ) 17. The claim arose out of the tragic events of 2014, when the driver of a bin lorry suffered a medical emergency such that he lost control of his vehicle and collided with pedestrians on the pavement, six of whom were killed. The appellant was a pedestrian who was standing at traffic lights and waiting to cross the road when the collision occurred. She did not qualify as a secondary victim as she did not know any of the people involved in the incident but she had subsequently developed PTSD as a result of what she had witnessed.

Was the appellant a primary victim and therefore entitled to bring a claim for psychiatric harm? No. The evidence confirmed that she “did not in fact suffer fear of physical injury at the relevant time”. Further, even if she had suffered such fear, the court held that it could not be regarded as reasonable on the facts as held to be established by the sheriff. Per Lord Reed in Campbell v North Lanarkshire Council [2000] SCLR 373, “one has to identify the range of foreseeable physical injury. This includes not only situations in which the pursuer was in fact objectively exposed to danger, but also situations in which he could reasonably believe that he was exposed to danger...if the pursuer was within that range, then he can recover for psychiatric injury. If he was not within that range, then he can recover for psychiatric injury only if he meets the Alcock requirements”.

Comment

As is invariably the case in claims of this type, whether brought by primary or secondary victims, the underlying subject matter is harrowing and tragic. The common law though operates in a way that contains liability within what it deems to be reasonable bounds. Whilst it is the specific Alcock control mechanisms that often fall to be tested in the context of claims by secondary victims, this decision is a useful reminder of the control the law also exercises over who qualifies as a primary victim.